Thursday, September 12, 2013

Reality and Fiction: Part 3 - Writing Real People in Fiction

George & Abe hunting vampires?
After touching broadly on the legal principles, it's time to get down to practicalities:

Can you use real people in your fiction?

As I alluded to in my earlier post, the answer is a qualified yes.

Example 1:  You have your character have a chance run in with Martha Stewart in a posh Washington, D.C. restaurant.  They exchange greetings and discuss mutual acquaintances, then go on their way.

No problem here.  Passing reference to Martha doesn't raise any issue about privacy, publicity or defamation.

Example 2:  Your character is in a posh Washington, DC restaurant when he sees Martha Stewart, in a drunken stupor, berate and throw a drink in the face of her waiter, stand on her table and pull up her skirt to reveal she is going commando and has a tattoo of Matt Lauer on her ass, then say something that reveals she is, in fact, the Georgetown Slasher, a vicious serial killer who leaves victims in the finest hotels in Washington surrounded by handmade candles and tasteful flower arrangements.

Now we have a problem.  It's not a right of privacy or publicity issue, but straight out defamation.  Even though it is labeled fiction, it still exposes Ms. Stewart to a possible lowering of her reputation.  And it would be hard to claim that the statement was not made with knowledge of falsity when in fact you are writing FICTION, which by definition is false.

Example 3:  Your earlier books have been made into successful movies - one by Clint Eastwood, and the other staring Matthew McConaughey - so you write them in to your later novels.

No problem here.  That's exactly what was done by best-selling author Michael Connelly.  His novel Blood Work was made into a move directed by and staring Clint Eastwood.  So when Connelly wrote the sequel A Darkness More Than Night, he included references to Eastwood and to the fact that a movie had been made about protagonist Terry McCaleb's heart transplant.

Matthew McConaughey played the role of Connelly's character Mickey Haller in the movie version of The Lincoln Lawyer.  In Connelly's sequels The Brass Verdict, The Reversal and The Fifth Witness, there are passing reference to his characters having encounters with McConaughey

Example 4:  Your character has various dealings with early industrial giants Henry Ford, Louis Chevrolet, and Thomas Edison.

This is the context of D.E. Johnson's series of books (Detroit Electric Scheme, Motor City Shakedown, Detroit Shuffle) set in Detroit in the early years of the auto industry.  No problem here.  They are dead.  No defamation.  No invasion of privacy.  And because their deaths long preceded any rights of publicity laws, there is no concern there either.  But since rights of publicity statutes exclude books, that issue doesn't exist in any event.

Heck, you could even write a book about, say, Abraham Lincoln killing vampires.  But then again, who would ever want to read something as far-fetched as that.

photo credit: <a href="">Scott Ableman</a> via <a href="">photopin</a> <a href="">cc</a>

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